Jailbreaking is Not a Crime: An Interview with bunnie Huang

If you want it to be legal to jailbreak or root your iPhone, iPad, or Xbox, you have nine days left to tell the US Copyright Office.
We talk a lot about hardware tinkering and repair here, but that's only one half of getting to know the insides of your devices. Being able to tinker with your software is just as important. Jailbreaking can help extend and expand the life of your device. Hardware in smart phones and game consoles can last a long time; jailbreaking lets consumers repurpose devices that have outlived their intended usefulness (by enabling multitasking on the iPhone 3G, for example, or adding Netflix support on an outdated smart TV).

Under the Digital Millennium Copyright Act (DMCA), jailbreaking of smartphones, tablets, and game consoles is currently murky legal territory: Section 1201 has been interpreted to mean that it's illegal to install third-party software on your devices. In 2010, the US Copyright Office granted an exemption from the DMCA for smartphones only; since then, it's been legal to jailbreak your phone. Now, that exemption is up for renewal—and tinkerers and hackers around the country, including bunnie Huang and the Electronic Frontier Foundation (EFF), are pushing for similar exemptions for game consoles and tablets.

Andrew "bunnie" Huang—author of Hacking the Xbox, Chumby founder, and MIT-educated electrical engineer—is defending users' right to jailbreak. Go sign his petition at Jailbreaking is Not a Crime. He'll be taking all the comments he gets to the Copyright Office on February 10th at 5 p.m. Eastern Time. Today, we sat down and talked with him (and some EFF representatives) about the campaign:

iFixit: Has the Copyright Office made any comments on jailbreaking since the 2010 smartphone exemption? How likely do you think it is that they'll renew that exemption? Why have exemptions for smartphones but not game consoles and tablets?

EFF: The CO hasn't made any public comments that we are aware of. We are very hopeful that the smartphone exemption will be renewed, and we think extending it to game consoles and tablets is the logical next step.

bunnie: My understanding is that the CO is fairly conservative about granting such exemptions, so tightly scoping the exemption request increases the chances that the result has real impact. A broad request to exempt large swathes of technology from the DMCA would likely be denied; and such a denial would waste the infrequent window of opportunity to have such requests examined. Therefore, an incremental approach is being taken, allowing the CO to try small changes and become comfortable with them. Note that the request to the CO splits smartphone/tablets and game consoles into separate categories, so that the CO can have the flexibility to reject or accept individual categories.

iFixit: I understand that Microsoft doesn't want huge numbers of people using the Xbox as a cheap computer, but how is that a copyright issue?

bunnie: There are a number of legal tools available to companies that wish to enforce a particular behavior, such as contracts, EULAs, copyrights, patents, and the DMCA.

The DMCA is a very powerful tool because it makes accessing technologically protected copyrighted works illegal. It's as simple as that: the act of decrypting a ROM is, to a first order, illegal, unless you fall into a small number of narrowly defined exemptions.

In order for a company to gain use of the DMCA as a tool to enforce user behavior, all they have to do is attempt to protect their copyrighted works. The protection doesn't even have to be that good; the statute is written to favor the intent of protecting the work, even if the implementation is flawed or overly-simplistic.

The ease of applying the DMCA to a situation combined with the ease of creating a copyrighted work and the very long shelf-life of a copyright makes the DMCA a go-to legal tool for limiting certain user behaviors.

This is why copyright comes up over and over again in jailbreaking cases.

iFixit: Do you know anything about the hearing process itself? What happens at the hearings? Who reads all the comments people are submitting (to your site and to the copyright office site)? Who makes the final decisions?

EFF: The hearings will be open to the public. Very likely, representatives from the various groups supporting and opposing the proposed exemptions will testify, and will answer questions from CO staff. CO staff also read the comments submitted. The Register of Copyrights then submits recommendations and the final decision is made by the Librarian of Congress.

iFixit: If the Copyright Office doesn't renew the smartphone exemption and doesn't allow game console/tablet extensions, when will it be illegal to jailbreak your iPhone again?

EFF: Based on our experience last time, the current exemption would essentially expire when the Librarian announces the 2012 exemptions, which we expect will happen in October.

iFixit: Your petition calls for people to talk about specific, cool hacks they've been able to do by jailbreaking their devices. What are some of the coolest hacks you've heard about, made possible by jailbreaking?

bunnie: I've seen all sorts of great things done on liberated devices, from clustered consoles turned into cheap supercomputers, to individual consoles converted to PCs for use as inexpensive educational platforms. In some countries, there is a very high import tariff on computers, but video game consoles are classified differently by customs, so jailbreaking a console is one of the cheapest ways to get a PC. There's of course the use of liberated consoles as media centers, which is a popular and widespread use of converted consoles. But let's not forget the very important but mundane cases of jailbreaking to apply a bugfix to the firmware, or to repair worn out or broken parts, or to just run some homebrew apps.

iFixit: You've been way more involved with DMCA issues than the average hacker, before, during, and after the publication of Hacking the Xbox. What surprised you the most about DMCA restrictions on the Xbox?

bunnie: Well, the major surprise was just the ground-shift in your right to hack. Before the DMCA, it wasn't illegal to modify your own stuff. Now, with the DMCA, it is. I think it's had a terrible effect on the innovation ecosystem in the US. The notoriety of the statute discourages everyone from curious youth to professionals from digging around in their own stuff to learn about it. It's as taboo to mod your box as it is to smoke a joint. How weird is that?

iFixit: Publishers were afraid to be associated with Hacking the Xbox. Have you experienced any of the backlash they were worried about?

bunnie: In the end, everything worked out amicably. However, I couldn't have had such a discourse with Microsoft without the guidance and encouragement of my MIT faculty and the EFF.

iFixit: Do you know of anyone who was in a similar position as you but wasn't able to fight the legal battle? What's the worst jailbreaking punishment you've heard about?

bunnie: There have been a lot of very tragic cases. I won't share specifics but I have been told of police raids and seizures, harrowing tales of sharing jail cells with addicts and murderers, and astronomical penalties and fines, not to mention the mental anguish of being involved in a protracted legal battle -- the depositions, the character attacks, the ruinous legal bills. And it happens all around the world, not just in the US. I do not wish it upon anyone.